Divorce Process

Divorce Process Lawyers In Edmonton

Court Process of Divorce

A Statement of Claim for Divorce filed with the Clerk of the Court of Queen’s Bench will begin the process.  There is a filing fee of $260.00 to be paid to the Court.

If you started the divorce action, you are called the “Plaintiff”. The other spouse is called the “Defendant“.

Statement of Claim

To obtain a divorce, you must have been married for at least a year. In contradiction, the marriage annulment period frame is less severe. A marriage can be invalidated at any time. This means you can make an appeal for annulment of marriage in Canada at any time rather than idling for at least a year. Nonetheless, making an application for annulment many years after your marriage could cause some issues as you will be required to explain the reasons for your impediment and why the marriage was not questioned earlier.

Property

If you and your spouse cannot agree on the division of your property, a matrimonial property action will be started at the same time. It is advisable that you obtain legal advice regarding property division depending on the complexity of your assets and debts.

Obtaining an Annulment

In order to get an annulment by the Court, you must prove to the court that a ground exists. The Court defers terminating a marriage if you and your partner have lived together as husband and wife. If there are children of the marriage, the Courts are even more reluctant to grant an annulment. For these purposes, the only way to convince the Courts is by determining if you have a strong ground for annulment. Some of the grounds are identified below. Contact us today for professional help!

Service of the Statement of Claim

Once the claim is filed at the Court House with the Clerk, you must “serve” a copy of the claim on your spouse.

• Your spouse must know that you have started an action for divorce.
• The Statement of Claim must be served personally, however, you cannot personally hand the claim to your spouse. You can either hire a process server to serve the claim or alternatively get another individual to serve the claim on your spouse.

If your spouse cannot be located or is out of the country and you cannot serve them personally, you may apply to the Court for permission to use an alternate method of service. You will need to obtain a Substitutional Service Order from the Courts. An alternate method may be to place a notice in the newspaper where your spouse last resided, or to serve them via social media or email.

Once the Statement of Claim is served, an Affidavit of Service needs to be completed by the person who served your spouse. When the Statement of Claim was served personally, then the Affidavit of Service needs to include a picture of your spouse confirming the person who was served.

Times Limits for Reply to Statement of Claim

Depending on where your spouse lives, he or she will have a time limit in which to reply to the action. If your spouse lives in the province, he or she has 20 days to reply to the claim. If your spouse is out of the province but in Canada, the time limit is one month. If your spouse is outside the country, the time limit is two months.

Disagreement with the Statement of Claim

Your spouse may disagree with your statement of claim, otherwise known as ‘contesting the divorce’.  If he or she contests the divorce, they need to file a Statement of Defence.

A Statement of Defence contains objections to some or all of the claims made in your original statement of claim. For example, he or she may object to the grounds for divorce or to your claim for parenting of the children, child support, spousal support, or property division.

In addition, your spouse may also file a Counter Claim to make claims against you.

Agreement with the Statement of Claim

Where the divorce is uncontested, there is no Court hearing. Your spouse may simply want to be notified of the progress of the action and will file a Demand of Notice. This means that they are not objecting to anything in the Statement of Claim or contesting the divorce, but simply asking to be informed of what is happening.

Alternatively, your spouse may do nothing and not respond to the Statement of Claim. In that case, you can file a document called Noting in Default. The divorce action can then continue without their involvement via what is known as a “desk divorce”.  Here, you would simply apply for a divorce judgment by filing certain forms with the Court of Queen’s Bench. These forms can be found on the Alberta Courts Website (www.albertacourt.ca) and include an Affidavit of Applicant and Request for Divorce.

The documents are reviewed by a Judge who must be satisfied that all the requirements for divorce have been met.

Agreement with the Statement of Claim

Under the Divorce Act, the Court has an obligation to ensure that children are adequately taken care of by way of appropriate parenting arrangements and child support.  The Court will use the Federal Child Support Guidelines to determine the proper support. If an agreement follows the guidelines, the agreement concerning parenting and support will likely be approved and be incorporated into the divorce judgment.

The judgment may contain further Orders regarding spousal support, property division, and Court costs. If the Judge is not satisfied, the agreement will not be approved.

Divorce Judgment

If a Judge is satisfied that you qualify for a divorce, you will be granted a divorce judgment. Parenting, child support, spousal support terms of the divorce judgment may be changed or varied even though the divorce is final.

Appeal of Divorce

If either of you wishes to appeal the divorce judgment on a question of law, you must file a Notice of Appeal to the Court of Appeal within 30 days of the divorce judgment.

Your divorce is final 31 days after the Court grants the divorce judgment unless there are special circumstances. After 31 days, you may then apply for a Certificate of Divorce to show when the divorce judgment was effective.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.

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